State v. Serrano

• Citation: 686 Ariz. Adv. Rep. 5,234 Ariz. 491,323 P.3d 774
• Decision Date: 07 May 2014
• Docket Number: No. 2 CA–CR 2012–0215.,2 CA–CR 2012–0215.
• Parties: The STATE of Arizona, Appellee, v. Anthony Connue SERRANO, Appellant.
• Court: Court of Appeals of Arizona

234 Ariz. 491

323 P.3d 774

686 Ariz. Adv. Rep. 5

The STATE of Arizona, Appellee,

v.Anthony Connue SERRANO, Appellant.

No. 2 CA–CR 2012–0215.

Court of Appeals of Arizona, Division 2.

May 7, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Jonathan Bass, Assistant Attorney General, Tucson, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender By Frank P. Leto, Assistant Public Defender, Tucson, Counsel for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 Following a jury trial, appellant Anthony Serrano was convicted of unlawful imprisonment, assault, and sexual abuse. Almost three weeks after sentencing, the trial court ordered Serrano to register as a sex offender. Because this irregular post-sentencing order did not extend the time for taking an appeal, and because Serrano did not file a timely notice of appeal from his judgment and sentences, we lack jurisdiction to review those matters.¹ However, we vacate the registration order, which was appealed in a timely fashion, because the court was not authorized to enter this order after sentencing.

Factual and Procedural Background

¶ 2 On April 5, 2012, the trial court imposed concurrent prison sentences, the longest of which was six years. The next day the state filed a “motion for clarification,” without citing any authority for the request. The document stated that “the Court did not make a determination regarding registration,” and it “request[ed] that the Court make a determination regarding sex offender registration” in view of Serrano's conviction for sexual abuse of an adult. The court then set a hearing on the matter and continued it when Serrano refused transport.

¶ 3 At the hearing on the state's motion, the prosecutor again asked the trial court “for clarification” on the issue of discretionary sex offender registration because the court had not stated at sentencing whether it would require Serrano to register. Serrano addressed the issue solely on the merits and asked the court, in its discretion, not to order registration. He made no objection to the proceedings on the grounds they were illegal or unauthorized. In fact, Serrano maintained “sentencing ... legally ... wasn't completed because we needed to complete this task.” He also asked the court for an express finding, which the court provided, that “sentencing is now complete for purposes of appeal.” The court's registration order was dated April 24, 2012, and filed April 27. Serrano filed a notice of appeal on May 2, 2012, challenging the “Judgment and Conviction” as well as the April 24 registration order.

Discussion

¶ 4 Despite both parties' assertions that we have jurisdiction over this appeal, we have an independent duty to examine and confirm our appellate jurisdiction. State v. Bejarano, 219 Ariz. 518, ¶ 2, 200 P.3d 1015, 1016 (App.2008). Parties cannot confer jurisdiction upon this court by agreement, Soltes v. Jarzynka, 127 Ariz. 427, 429, 621 P.2d 933, 935 (App.1980), by stipulation, In re Maricopa Cnty. Juv. Actions Nos. J–86384 & JS–2605, 122 Ariz. 238, 239–40, 594 P.2d 104, 105–06 (App.1979), or, as the state suggests, by invited error or forfeiture, see Thomas v. Thomas, 203 Ariz. 34, ¶ 9, 49 P.3d 306, 308 (App.2002). Our jurisdiction is provided and limited by law. Ariz. Const. art. VI, § 9; State v. Avila, 147 Ariz. 330, 333, 710 P.2d 440, 443 (1985); State v. Wilson, 207 Ariz. 12, ¶ 4, 82 P.3d 797, 799 (App.2004). Hence, the legal conclusions reached by the parties and the trial court are irrelevant to our de novo analysis of the issues affecting our jurisdiction. See Bejarano, 219 Ariz. 518, ¶ 2, 200 P.3d at 1017.

Modification and Appeal of Judgment and Sentence

¶ 5 “Jurisdiction to entertain a criminal appeal is vested in this court by the timely filing of a notice of appeal pursuant to a jurisdictional statute.” State v. Smith, 171 Ariz. 501, 503, 831 P.2d 877, 879 (App.1992). As our supreme court recently clarified in State v. Whitman, 684 Ariz. Adv. Rep. 7, ¶ 1, ––– Ariz. ––––, 324 P.3d 851, 2014 WL 1385396 (Apr. 9, 2014), the pronouncement of sentence begins the twenty-day period for filing a notice of appeal under Rule 31.3, Ariz. R.Crim. P. This means the deadline for filing the notice of appeal here was April 25. SeeAriz. R.Crim. P. 1.3(a). Serrano's May 2 notice was therefore untimely, and we lack jurisdiction over his appeal from the judgment and sentence. SeeA.R.S. § 13–4033(A)(1), (4) (allowing defendant to appeal final judgment or sentence).

¶ 6 Contrary to the state's arguments in its answering brief, the post-sentencing developments here had no effect on the judgment, sentences, or time for taking an appeal. In short, the case was final at sentencing and not subject to further modification or orders. Although the state styled its motion below as one for “clarification,” implying there was an “error[ ] in the record arising from oversight or omission” that was subject to correction under Rule 24.4, Ariz. R.Crim. P., the state's request was not authorized by that rule. The motion did not call upon the trial court to correct or “clarify the record and make sure it accurately reflected the sentence originally imposed,” as is the purpose of Rule 24.4. State v. Lujan, 136 Ariz. 326, 329, 666 P.2d 71, 74 (1983). As the state acknowledged, the court simply had not addressed the topic of sex offender registration at sentencing, and the record accurately reflects this fact. Thus, the state did not seek “to correct the record to make it speak the truth” as contemplated by Rule 24.4. State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (App.1982). Instead, the state sought “to supply judicial action” and “cause an order ... that was never previously made ... to be placed upon the record,” which Rule 24.4 does not permit. Pyeatt, 135 Ariz. at 143, 659 P.2d at 1288.

¶ 7 As the state implicitly acknowledged in its motion, the trial court failed to address the issue of sex offender registration at sentencing because the parties had made no such request, and the court was not legally required to do so sua sponte. Section 13–3821, A.R.S., automatically imposes registration requirements on individuals convicted of the criminal offenses set forth in subsection (A) of the statute; subsection (C), in turn, gives a trial court discretion to order registration in other specified situations. Fisher v. Kaufman, 201 Ariz. 500, ¶¶ 9–10, 38 P.3d 38, 40 (App.2001). When, as here, a person is convicted of sexual abuse against an adult, registration is not mandated by the statute but may be required in the court's discretion. State v. Ray, 209 Ariz. 429, ¶ 8, 104 P.3d 160, 163 (App.2004). Section 13–3821(C) provides, in relevant part, that “the judge who sentences a defendant for any violation of chapter 14 ... may require the person who committed the offense to register pursuant to this section.” (Emphasis added.) Neither our rules of procedure nor our statutes require judges to address the issue of sex offender registration at sentencing when doing so is discretionary. SeeAriz. R.Crim. P. 26.10, 26.11 (specifying court's obligations at sentencing). Cf.Ariz. R.Crim. P. 27.12(a), (d) (requiring court in probation review hearing to consider whether to continue sex offender registration for certain young offenders who committed crimes as minors).

¶ 8 We do not “require trial judges sua sponte to rule on issues not raised before them,” State v. Cannon, 148 Ariz. 72, 76, 713 P.2d 273, 277 (1985), and it is generally the parties' responsibility to seek discretionary orders. See, e.g., State v. Clabourne, 142 Ariz. 335, 346, 690 P.2d 54, 65 (1984) (preparation of new pre-sentence report); State v. Romo, 111 Ariz. 70, 70, 523 P.2d 501, 501 (1974) (postponement of sentencing for competency examination); State v. Longoria, 123 Ariz. 7, 10, 596 P.2d 1179, 1182 (App.1979) (severance, continuance, or mistrial); see also State v. Gipson, 229 Ariz. 484, ¶ 15, 277 P.3d 189, 192 (2012) (noting adversary system permits counsel to choose tactics). Here, had the state filed its post-sentencing motion before sentencing had occurred, then the trial court's silence on the issue would be treated as a denial of the state's request for a registration order. “A motion that is not ruled on is deemed denied by operation of law.” State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993). A fortiori, a motion that is never made has the same result.

¶ 9 In criminal proceedings, the judgment and sentence are “complete and valid” upon oral pronouncement, Ariz. R.Crim. P. 26.16(a), and cannot be modified thereafter except as provided by Rule 24.3, Ariz. R.Crim. P. State v. Thomas, 142 Ariz. 201, 204, 688 P.2d 1093, 1096 (App.1984). Contrary to the state's assertion, trial courts lack inherent authority to modify a criminal judgment and sentence. Our supreme court definitively resolved this question with the following passage in State v. Falkner, 112 Ariz. 372, 374, 542 P.2d 404, 406 (1975):

Does the court have inherent power to modify a sentence? The answer is in the negative. There is no such power in the superior court. The Supreme Court's Advisory Committee on Criminal Rules suggested this grant of jurisdiction to the trial court, but it was rejected. See Arizona Proposed Rules of Criminal Procedure, July 15, 1972, Proposed Rule 27.3(b). Therefore, the trial court's jurisdiction in post-trial motions is limited to that set out in the Rules, and an exercise of that jurisdiction is permissible only upon the grounds specified therein.

Accord State v. Superior Court, 124 Ariz. 288, 289, 603 P.2d 915, 916 (1979); State v. Guthrie, 110 Ariz. 257, 258, 517 P.2d 1253, 1254 (1974) ( “As we have held in the past the superior court has no jurisdiction to modify its original judgment.”).

¶ 10 The cases relied upon by the state do not address or otherwise undermine this holding of Falkner. In State v. Mann, our supreme court stated that “courts have the...